Draft Brexit deal prevents a hard Border in Ireland

Proposed EU-UK withdrawal agreement also addresses future of Common Travel Area

British prime minister Theresa May says that she believes the current draft Brexit agreement is the best that could be negotiated. Video: Reuters


The UK would maintain full alignment with EU customs union rules and Northern Ireland would also stay aligned with the single market to prevent a hard Irish Border, the draft Brexit deal says.

These backstop arrangements would apply “unless and until” an alternative future EU-UK relationship that avoids a hard Border is found, according to the proposed withdrawal agreement that was published by the European Commission on Wednesday night.

The proposed divorce deal, approved on Wednesday by the British cabinet, includes five pages of a “protocol” and additional articles covering Ireland and Northern Ireland that aim to maintain an invisible Irish Border.

The deal says that the EU and the UK will use their best efforts to conclude and ratify an agreement on future EU-UK trade by July 1st, 2020 during the Brexit transition period, but the UK can, before that date, request an extension to the transition arrangement, which is currently scheduled to end on December 31st, 2020.

The request must be agreed by a joint committee, comprising EU and UK representatives and co-chaired by both the EU and the UK.

The protocol leaves open-ended a possible extension to the transition period; there is no set end-date in the protocol under the article that covers this provision.

The European Court of Justice will continue to have jurisdiction over the UK during the transition period.

The draft deal, still to be approved by the UK and EU parliaments, reasserts the intention of the EU and UK to replace the so-called backstop solution with an agreement that establishes alternative arrangements for “ensuring the absence of a hard Border on the island of Ireland on a permanent footing”.

However, if the transition period ends without agreement on a future EU-UK relationship, and if there is no extension, a “single customs territory” would then apply between the EU and UK, with Northern Ireland and Britain in the same customs territory.

The draft agreement includes a deal between the EU and the UK to agree a set of measures ensuring “level playing field” rules between the EU and UK during such a period.

The joint committee can make amendments “in order to lay down higher standards for these level playing field conditions”.

The EU’s customs code, which permits the sale of products within the EU, will continue to apply to Northern Ireland in the backstop. This will ensure Northern Irish business faces no restrictions selling into the single market.

Under the backstop, the UK will ensure that Northern Ireland remains aligned with a limited set of rules that are related to the EU single market in order to avoid a hard Border.

These include legislation on goods, sanitary rules for veterinary controls, rules on agricultural production, VAT and excise in respect of goods, and state aid rules.

Single customs territory

The agreement says the EU-UK single customs territory would avoid the need for tariffs, quotes or checks on rules of origin on products between the EU and the UK.

The protocol is based on maintaining full alignment with those rules of the EU’s internal market and customs union supporting North-South co-operation, the all-island economy and the protection of the 1998 Belfast Agreement, to apply “unless and until an alternative arrangement implementing another scenario is agreed”.

In a move to appease the concerns of unionists and Brexiteers about a border emerging in the Irish Sea, the draft agreement aims to protect trade within the UK, ensuring “unfettered market access for goods moving from Northern Ireland to the rest of the United Kingdom’s internal market”.

The EU and UK will, the agreement says, use their “best endeavours” to ensure frictionless trade between Northern Ireland and the rest of the UK.

The joint committee will keep these arrangements “under constant review and adopt appropriate recommendations with a view to avoiding, to the extent possible, controls at the ports and airports of Northern Ireland”.

Under the draft agreement, the UK will ensure that the Common Travel Area and associated rights will continue to apply, allowing the free movement of EU citizens and their family members, irrespective of their nationality, “to, from and within Ireland”.

The backstop also affirmed the UK’s commitment to facilitating the “efficient and timely transit” of goods moving across its so-called landbridge to and from Ireland and another EU member state or third country.

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